Citation Nr: 0122998
Decision Date: 09/21/01 Archive Date: 09/24/01
DOCKET NO. 96-32 158 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
psychiatric disorder.
2. Entitlement to service connection for a psychiatric
disorder, to include bipolar disorder.
REPRESENTATION
Appellant represented by: William L. Abernathy, Jr.
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
D. Havelka, Counsel
INTRODUCTION
The veteran's active military service extended from April
1966 to February 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee.
In May 2000 the Board rendered a decision on the veteran's
claim. In March 2001 the United States Court of Appeals for
Veterans Claims (known as the United States Court of Veterans
Appeals prior to March 1, 1999) (hereinafter, "the Court")
vacated the Board's decision and remanded the case.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal with respect
to reopening of the veteran's claim.
2. The Board denied the veteran's attempt to reopen his
claim for service connection for a psychiatric disorder
September 1984.
3. Subsequent to the September 1984 Board decision, the
veteran submitted a medical opinion from a psychiatrist which
related his bipolar disorder to alleged symptoms during
active military service.
4. The evidence received since the September 1984 Board
decision is so significant that it must be considered in
order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. The September 1984 decision of the Board denying
reopening of the veteran's claim for service connection for a
psychiatric disorder is final. 38 U.S.C.A. § 7104(b) (West
1991 & Supp. 2001).
2. Evidence received since the September 1984 Board decision
is new and material, and the veteran's claim for service
connection for a psychiatric disorder is reopened. 38
U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, during the pendency of this appeal, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096(2000) (codified as amended at
38 U.S.C.A. § 5100 et seq. (West Supp. 2001). This law
redefined the obligations of VA with respect to the duty to
assist and included an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits, and also eliminated the concept of a
well-grounded claim. This change in the law is applicable to
all claims filed on or after the date of enactment of the
VCAA or filed before the date of enactment and not yet final
as of that date. In view of the reopening of the veteran's
claim which follows, the veteran is not prejudiced by the
Board's consideration of whether the evidence is new and
material to reopen the claim without first remanding the
claim to the RO for initial consideration.
The Board noted that regulations implementing the VCAA were
recently promulgated that amends the regulation defining what
constitutes new and material evidence. See 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (to be codified at 38 C.F.R.
§ 3.156(a)). This amendment, however, was made effective
with respect to claims filed on or after August 29, 2001, and
is not applicable to the instant appeal.
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991). Direct service connection may be established for a
disability resulting from diseases or injuries which are
clearly present in service or for a disease diagnosed after
discharge from service, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (2000).
Establishing direct service connection for a disability which
has not been clearly shown in service requires evidence
sufficient to show (1) the existence of a current disability;
(2) the existence of a disease or injury in service; and (3)
a relationship or connection between the current disability
and a disease contracted or an injury sustained during
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R.
§ 3.303(d) (2000); Cuevas v. Principi, 3 Vet. App. 542, 548
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).
However, "congenital and developmental defects, refractive
error of the eye, personality disorders and mental deficiency
as such are not diseases or injuries within the meaning of
applicable legislation" for service connection purposes.
38 C.F.R. § 3.303(c) (2000)(emphasis added).
Reopening a claim which has been previously and finally
disallowed requires that new and material evidence be
presented or secured since the last final disallowance of
that claim. 38 U.S.C.A. § 5108 (West 1991); Evans v. Brown,
9 Vet. App. 273, 285 (1996); see Graves v. Brown, 8 Vet. App.
522, 524 (1996).
When considering whether new and material evidence has been
presented or secured to reopen a claim, the law provides,
If new and material evidence is presented
or secured with respect to a claim which
has been disallowed, the Secretary shall
reopen the claim and review the former
disposition of the claim.
38 U.S.C.A. § 5108 (West 1991).
VA regulations specifically provide that:
New and material evidence means
evidence not previously submitted to
agency decision makers which bears
directly and substantially upon the
specific matter under consideration,
which is neither cumulative nor
redundant, and which by itself or in
connection with evidence previously
assembled is so significant that it
must be considered in order to
fairly decide the merits of the
claim.
38 C.F.R. § 3.156 (2000).
The first question in determining whether the evidence is new
and material is whether the newly presented evidence is
actually "new" in the sense that it was not of record at
the time of the last final disallowance of the claim and is
not merely cumulative of other evidence of record. Evans v.
Brown, 9 Vet. App. 273, 283 (1996); Struck v. Brown, 9 Vet.
App. 145, 151 (1996). The second question is whether the
evidence is "material" in the sense that it is relevant in
that it bears directly and substantially on the matter under
consideration. If such evidence is "so significant that it
must be considered in order to fairly decide the merits of
the claim," then the claim must be reopened. Hodge v. West,
155 F.3d 1356 (1998); 38 C.F.R. § 3.156(a) (2000). When
determining whether the veteran has submitted new and
material evidence to reopen the claim, consideration must be
given to all of the evidence since the last final denial of
the claim. Evans v. Brown, 9 Vet. App. 273 (1996), Glynn v.
Brown, 6 Vet. App. 523 (1994).
If the newly presented evidence is not "new," the claim to
reopen fails on that basis and no further analysis of the
evidence is required. Similarly, if "new" evidence is not
"material" in the sense that it is does not bear directly
and substantially on the matter under consideration, nor is
it so significant that it must be considered in order to
fairly decide the merits of the claim, the claim to reopen
fails on that basis and the inquiry ends. New and material
evidence can also be evidence which provides a more complete
picture of the circumstances involving a claim even if the
evidence is unlikely to alter the ultimate resolution of the
claim. Hodge v. West, 155 F.3d 1356 (1998).
In this case, the Board denied the veteran's attempt to
reopen his claim for service connection for a psychiatric
disorder in a September 1984. That Board decision is final.
38 U.S.C.A. § 7104(b) (West 1991).]
The matter under consideration in this case is whether a
psychiatric disorder was incurred during the veteran's active
military service. In order for the veteran's claim to be
reopened, evidence must have been presented, or secured,
since the September 1984 Board decision which is relevant to,
and probative of, this matter under consideration. The
evidence of record reveals that the veteran was diagnosed as
suffering from bipolar disorder several years after service.
The veteran's service medical records reveal that the veteran
was diagnosed with a passive-aggressive personality disorder
during service, and that he was "free of mental defects,
disease, or derangement" on separation examination.
Essentially, the veteran's claim is that his current bipolar
disorder was manifest during service and was misdiagnosed at
that time as a personality disorder.
The evidence of record at the time of the September 1984
Board decision which was relevant to the veteran's claim for
service connection for a psychiatric was the veteran's
service medical records, service personnel records related to
his discharge from service, and private medical records dated
in 1976.
In this case the evidence submitted since the September 1984
Board decision that refers to the veteran's claimed
psychiatric disorder includes: additional private medical
records from the 1970s, recent VA treatment records, and an
1995 medical opinion from a private psychiatrist. The Board
concludes that this evidence is new because it was not before
the Board when it denied the veteran's attempt to reopen his
claim for service connection September 1984. This evidence
is also "material" because it is bears directly and
substantially upon the specific matter under consideration,
namely whether the veteran had a psychiatric disorder during
active service. Specifically, the 1995 private medical
opinion indicates that the psychiatrist reviewed the
veteran's service medical records and offered an opinion that
the veteran's current bipolar disorder was misdiagnosed as a
passive-aggressive personality disorder during service. This
evidence is so significant that it must be considered in
order to fairly decide the merits of the claim.
Based on the applicable law, regulations and court decisions,
the additional evidence received since the September 1984
Board decision is new and material and provides the required
evidentiary basis to reopen the veteran's claim. Moreover,
the Board notes that new and material evidence can be
evidence which provides a more complete picture of the
circumstances involving a claim even if the evidence is
unlikely to alter the ultimate resolution of the claim.
Hodge v. West, 155 F.3d 1356 (1998).
ORDER
New and material evidence having been submitted, the claim
for entitlement service connection for a psychiatric disorder
is reopened.
REMAND
As discussed earlier in this decision, the VCAA redefined the
obligations of VA with respect to the duty to assist and
included an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. This law also eliminated the concept of a
well-grounded claim and superseded the decision of the United
States Court of Appeals for Veterans Claims in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam
order), which had held that VA could not assist in the
development of a claim that was not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date. VCAA, §
7(a), 114 Stat. at 2099-2100 ; see also Karnas v. Derwinski,
1 Vet. App. 308 (1991). The implementing regulations
promulgated on August 29, 2001, also may have an effect on
the development and notification requirements with respect to
consideration of the claim to entitlement to service
connection for a psychiatric disorder on the merits.
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Therefore, for
these reasons, a remand is required.
In an effort to assist the RO, the Board has reviewed the
claims file and identified certain assistance that must be
rendered to comply with the VCAA. However, it is the RO's
responsibility to ensure that all appropriate development is
undertaken in this case.
Review of the entire claims file reveals that all the way
back in July 1978 the veteran submitted a letter to the RO
which indicated that he recently received 5 weeks of
inpatient medical treatment for his claimed psychiatric
disorder at VA medical center (VAMC) Murfreesboro, Tennessee.
However, there is no indication that these records were ever
requested. This must be done. Records generated by VA are
constructively included within the record. If records of VA
treatment are material to the issue on appeal and are not
included within the claims folder, a remand is necessary to
acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611,
613 (1992).
Most of the private medical records submitted by the veteran
to support his claim are essentially hospital reports for
periods of inpatient treatment. Review of these records
strongly suggests that throughout the 1970s the veteran was
receiving regular outpatient treatment for his claimed
bipolar disorder. However, the veteran has not provided the
information needed to attempt to retrieve any outpatient
medical records which may exist. He should be asked to
submit the necessary information.
Finally, a VA examination and a request for a medical opinion
seem warranted in light of the new evidence submitted by the
veteran. The Court has also held that, when the medical
evidence is inadequate, VA must supplement the record by
seeking an advisory opinion or ordering another medical
examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and
Hatlestad v. Derwinski, 3 Vet. App. 213 (1992).
Accordingly, this case is REMANDED for the following:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 1991 &
Supp. 2001) and the implementing
regulations are fully complied with and
satisfied.
2. The veteran should be asked to
provide a list containing the names of
all health care professionals and/or
facilities (private and governmental)
where he had been treated for his claimed
bipolar disorder since his separation
from service in February 1969.
Subsequently, and after securing the
proper authorizations where necessary,
the RO should make arrangements in order
to obtain all the records of treatment
from all the sources listed by the
veteran which are not already on file.
Specifically, the Board is interested in
the veteran's outpatient psychiatric
treatment records from the 1970s. All
information obtained should be made part
of the file. The RO should also obtain
all the records of any treatment at VA
facilities which are not already on file.
Specifically, the RO should request the
veteran's inpatient treatment records for
1978 from VAMC Murfreesboro.
3. Following the above, the veteran
should be accorded a VA psychiatric
examination The report of examination
should include a detailed account of all
manifestations of psychiatric pathology
found to be present. If there are
different psychiatric disorders, the
examiner should attempt to reconcile the
diagnoses and should specify which
symptoms are associated with which
disorders. If certain symptomatology
cannot be disassociated from one disorder
or another, it should be specified. All
necessary special studies or tests
including psychological testing are to be
accomplished. The examiner should assign
a numerical code under the Global
Assessment of Functioning Scale (GAF). It
is imperative that the examiner include a
definition of the numerical code assigned.
Thurber v. Brown, 5 Vet. App. 119 (1993).
The diagnosis should be in accordance with
the DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL
DISORDERS (4TH ed. 1994).
The examiner is requested to review the
veteran's service medical records (please
note that the veteran's separation
examination is not contained in the
separate folder, but is attached directly
in the claims file just above the service
medical records folder) along with the
other evidence of record, particularly Dr.
Jamieson's June 1995 medical opinion. The
examiner is requested to offer an opinion
as to the etiology of the veteran's
bipolar disorder. Is the veteran's
current bipolar disorder related to
service when the service medical records
show a single entry of passive-aggressive
personality disorder, and that the veteran
had no psychiatric abnormalities on
separation?
The entire claims folder and a copy of
this remand must be made available to and
reviewed by the examiner in conjunction
with the examination.
4. Thereafter, the RO should readjudicate
this claim. If the benefit sought on
appeal remains denied, the appellant and
the appellant's representative, if any,
should be provided a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals